EXHIBIT 10.1.1
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (the "Agreement") is made
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as of this __ day of October, 1999, by and among Z-Tel Technologies, Inc., a
Delaware corporation (the "Company"), D. Xxxxxxx Xxxxx, Xxxxx X. Kitchen,
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Xxxxxxx X. XxXxxxxxx, and J. Xxxxx Xxxxxxx (each a "Management Stockholder" and
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together, the "Management Stockholders"), BA Capital Company, L.P., a Texas
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limited partnership (formerly known as NationsBanc Capital Corporation, a Texas
corporation ("BACC")), Sewanee Partners II, L.P., a Tennessee limited
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partnership ("XX XX"), and Gramercy Z-Tel LLC, a Delaware limited liability
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company ("Gramercy," and together with BACC and XX XX, collectively, the
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"Investors" and each individually, an "Investor") and the other stockholders
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listed on the signature pages hereto (each Stockholder that is not a Management
Stockholder or an Investor, collectively, the "Other Stockholders" and
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collectively with the Management Stockholders and the Investors, the
"Stockholders" and each individually, a "Stockholder").
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W I T N E S S E T H:
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WHEREAS, each of the Stockholders now or may hereafter own equity
securities of the Company (including, without limitation, shares of the
Company's common stock, $0.01 par value per share (the "Common Stock")), any
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class or series of preferred stock (including, without limitation, shares of the
Company's Series A Preferred Stock, $0.01 par value per share (the "Series A
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Preferred"), Series B Preferred Stock, $0.01 par value per share (the "Series B
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Preferred"), and Series C Preferred Stock, $0.01 par value per share (the
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"Series C Preferred" and, together with Series A Preferred and the Series B
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Preferred, the "Preferred Stock")), options, warrants, instruments convertible
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or exchangeable into such securities or rights to acquire such securities
(collectively, the "Securities");
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WHEREAS, Gramercy and the Company are parties to that certain Amended and
Restated Stock Purchase Agreement, dated as of September 30, 1999 (the "Series C
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Purchase Agreement");
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WHEREAS, the obligations of Gramercy under the Series C Purchase Agreement
are conditioned, among other things, upon the execution and delivery of this
Agreement by BACC, XX XX, the Management Stockholders, the Other Stockholders
and the Company;
WHEREAS, BACC, XX XX, the Management Stockholders, certain of the Other
Stockholders and the Company are parties to a Stockholders' Agreement, dated as
of November 4, 1998 (the "Prior Stockholders' Agreement"); and
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WHEREAS, in order to induce Gramercy to invest funds in the Company
pursuant to the Series C Purchase Agreement, the parties to the Prior
Stockholders' Agreement hereby amend and restate the Prior Stockholders'
Agreement on the terms herein provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned parties hereto
agree as follows:
1. Definitions.
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(a) All capitalized terms used and not otherwise defined herein shall
have the meanings given them in the Amended and Restated Certificate of
Designations of the Company filed with the Secretary of State of Delaware on
October __, 1999 (the "Certificate").
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(b) An "Affiliate" shall mean, with respect to any corporation,
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limited liability company, partnership, limited partnership, joint venture,
joint stock company, firm, company, syndicate, trust, estate, association,
governmental authority, business, organization or any other incorporated or
unincorporated entity (each a "Person"), any other Person that, directly or
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indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, such Person.
(c) "Control" (including the terms "controlling", "controlled by" and
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"under common control with") means the possession, direct or indirect, of the
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power to direct or cause the direction of the management, policies or activities
of a Person whether through the ownership of securities, by contract or agency
or otherwise; provided, however, that none of the Investors will be deemed to
"control" the Company.
(d) A "Co-Sale Pro Rata Share" shall mean the ratio that (i) the sum
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of the number of shares of Common Stock then held by the Eligible Seller (as
defined herein) and the number of shares of Common Stock issuable upon exercise
of any options, warrants or convertible securities (including, without
limitation, the Preferred Stock) then held by such Eligible Seller bears to (ii)
the sum of the total number of shares of Common Stock then held by all Eligible
Sellers and the number of shares of Common Stock issuable upon exercise of any
options, warrants or convertible securities (including, without limitation, the
Preferred Stock) held by all Eligible Sellers plus the number of shares of
Common Stock then held by the Stockholder proposing to sell his or its shares of
Common Stock.
(e) "Independent Third Party" shall mean any person who, immediately
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prior to the contemplated transaction, is not an Affiliate of a Stockholder.
(f) The "Majority Investors" shall mean both (i) the holders of a
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majority of the outstanding shares of the Series A Preferred for so long as such
holders and their respective Affiliates own at least fifty percent (50%) of the
Securities (counted on an as-converted basis) owned by them on the date hereof
and (ii) the holders of a majority of the outstanding shares of the Series C
Preferred for so long as such holders and their respective Affiliates own at
least fifty percent (50%) of the Securities (counted on an as-converted basis)
owned by them on the date hereof.
(g) "New Securities" shall mean (i) any shares of capital stock of the
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Company, including Common Stock, Preferred Stock and any other series or class
of common stock, preferred stock or other capital stock, whether now authorized
or not, (ii) rights, options or warrants to purchase said shares of capital
stock, and (iii) securities of any type whatsoever that are, or may become,
convertible into, exchangeable, or exercisable for said shares of capital stock;
provided, however, that for purposes hereunder, "New Securities" shall not
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include (i) the
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Common Stock, Preferred Stock and other securities of the Company issued prior
to the date hereof and set forth in Schedule 2.5 of the Series C Purchase
Agreement, (ii) the Securities of the Company issued pursuant to the Series C
Purchase Agreement, (iii) the Securities of the Company issued upon conversion
of the Preferred Stock (the "Preferred Conversion Shares"), (iv) the Series A
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Payments-in-Kind, (v) the Series B Payments-in-Kind, (vi) the Series C Payments-
in-Kind, (vii) any Common Stock offered to the public generally pursuant to a
registration statement under the Securities Act in connection with a Qualified
Public Offering, (viii) securities granted, issued or sold in connection with
the Option Pool ("Option Securities"), (ix) securities issued upon exercise of
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the securities in existence on the date hereof and set forth in Schedule 2.5 of
the Series C Purchase Agreement, including without limitation, the Option
Securities, and (x) stock issued in connection with any stock split, stock
dividend or recapitalization by the Company.
(h) A "Permitted Transferee" shall mean (i) in the case of a
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Stockholder that is a natural person, such Stockholder's spouse, siblings, heirs
(whether by will or operation of law) and descendants (whether natural or
adopted), any trust for the benefit of such person or persons or any of the
foregoing or any charitable organization and (ii) in the case of any Stockholder
that is not a natural person, any Affiliate of such Stockholder, provided in
each case that such person has entered into an Assumption Agreement in the form
attached hereto as Exhibit A, whereby such person has agreed to be bound by the
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terms of this Agreement and to be treated as an "Other Stockholder" for purposes
of this Agreement or, if such person is an Affiliate of an Investor, an
"Investor" for purposes of this Agreement or, if such person is the spouse,
sibling, heir, descendent or trust for the benefit of any of the foregoing of a
Management Stockholder, as a "Management Stockholder" for purposes of this
Agreement.
(i) "Pro Rata Share" shall mean the ratio that (i) the sum of the
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total number of shares of Common Stock which are then held by a Stockholder and
those which the Stockholder has the right to obtain pursuant to exercise or
conversion of any option, warrant, right or convertible security (including,
without limitation, the Preferred Stock) bears to (ii) the sum of the total
number of shares of Common Stock then outstanding and which are issuable
pursuant to exercise or conversion of any then outstanding options, warrants,
rights or convertible securities (including, without limitation, the Preferred
Stock).
(j) "Put Securities" shall mean the Series A Preferred, Series B
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Preferred, Series C Preferred, the Preferred Conversion Shares, Series A
Payments-in-Kind, Series B Payments-in-Kind or Series C Payments-in-Kind held by
an Investor or holder of shares of Series B Preferred exercising the Put on a
Put Date.
(k) A "Remaining Pro Rata Share" shall mean the ratio that (a) the sum
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of the number of shares of Common Stock then held by the Eligible Offeree (as
defined herein) and the number of shares of Common Stock issuable upon exercise
of any options, warrants or convertible securities (including, without
limitation, the Preferred Stock) then held by such Eligible Offeree bears to (b)
the sum of the total number of shares of Common Stock then held by all Eligible
Offerees and the number of shares of Common Stock issuable upon exercise of any
options, warrants or convertible securities (including, without limitation, the
Preferred Stock) then held by all Eligible Offerees.
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(l) "Requisite Holders" shall mean Persons holding in the aggregate
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shares of the capital stock of the Company representing at least forty percent
(40%) of the votes eligible to be cast in an election for the directors of the
Company, which group must include (i) BACC for so long as BACC and its
Affiliates collectively own at least fifty percent (50%) of the Securities
(counted on an as-converted basis) owned by them on the date hereof and (ii)
Gramercy for so long as Gramercy and its Affiliates collectively own at least
fifty percent (50%) of the Securities (counted on an as-converted basis) owned
by them on the date hereof.
(m) A "Sale of the Company" shall mean the sale of the Company to an
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Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing the
voting power under normal circumstances to elect a majority of the Company's
board of directors (whether by merger, consolidation or sale or Transfer of the
Company's capital stock or otherwise) or (ii) all or substantially all of the
Company's assets determined on a consolidated basis.
(n) "Series A Purchase Agreement" shall mean the Stock Purchase
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Agreement, dated November 4, 1998, by and among the Company, BACC and XX XX.
(o) "Transfer" (including al correlative meanings) shall mean any
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transfer of Securities, whether by sale, assignment, pledge, encumbrance, gift,
bequest, appointment or otherwise.
2. Right of First Refusal.
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(a) In the event that (i) a Management Stockholder or (ii) any Other
Stockholder that, together with such Other Stockholders' Affiliates,
collectively own in the aggregate more than one percent (1%) of the fully
diluted Common Stock of the Company, proposes to Transfer any of his or its
Securities (other than in a Qualified Public Offering (subject to the
Stockholders' piggyback registration rights set forth in Exhibit B) or as
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permitted pursuant to Section 8 hereof), such Stockholder shall give the Board
of Directors of the Company written notice of the price, terms and conditions of
the proposed transfer. Subject to any required approval of the holders of the
Series A Preferred and the Series C Preferred pursuant to the Certificate, the
Company shall have thirty (30) days from the date of receipt of any such notice
to agree to purchase up to all of such Securities, for the price and upon the
terms and conditions specified in the notice, by delivering written notice to
such Stockholder stating therein the quantity of Securities to be purchased up
to all of such Securities.
(b) In the event that the Company does not receive the requisite
approval from the holders of Series A Preferred and Series C Preferred or the
Company determines that it shall not purchase all of the Securities that such
Stockholder proposes to Transfer within the thirty (30) day period specified in
Section 2(a) hereof, such Stockholder shall then give the Investors
(collectively, the "Eligible Offerees") written notice of the price, terms and
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conditions of the proposed Transfer (which shall be the same price, terms and
conditions specified in the notice to the Company pursuant to Section 2(a)
above). Each Eligible Offeree shall have thirty (30) days from the date of
receipt of any such notice to agree to purchase up to its Remaining Pro Rata
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Share of such Securities, for the price and upon the terms and conditions
specified in the notice, by giving written notice to the Transferring
Stockholder stating therein the quantity of securities to be purchased up to
such person's Remaining Pro Rata Share. If any Eligible Offeree fails to agree
to purchase its full Remaining Pro Rata Share within such thirty (30) day
period, the Stockholder Transferring such Securities will give the Eligible
Offerees who did so agree (the "Electing Offerees") notice of the number of
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Securities which were not subscribed for. Such notice may be by telephone if
followed by written confirmation within two (2) days. The Electing Offerees
shall have fifteen (15) days from the date of such second notice (which 15-day
period shall be measured from the date of the telephonic notice, if so made,
provided that written confirmation is supplied in accordance with the previous
sentence) to purchase their Remaining Pro Rata Share (or such greater amount as
such Electing Offerees agree upon) of all or any part of the Securities not
purchased by such other Eligible Offerees. For purposes of the second election
under this Section 2(b), shares held by Eligible Offerees other than Electing
Offerees shall be excluded from clause (b) for the definition of a "Remaining
Pro Rata Share."
(c) Notwithstanding anything to the contrary in this Section 2, the
Company, the Eligible Offerees and the Electing Offerees may not in the
aggregate purchase less than all of the Securities proposed to be Transferred
pursuant to the notice to the Company pursuant to Section 2(a) above.
(d) Subject to the provisions of Section 3, in the event the Company,
the Eligible Offerees and the Electing Offerees fail to agree to purchase all of
the Securities proposed to be Transferred within the specified thirty (30) day
period in the case of the Company, plus the then specified thirty (30) day
period in the case of the Eligible Offerees, plus the then specified fifteen
(15) day period in the case of the Electing Offerees, respectively, such
Stockholder shall have ninety (90) days thereafter to Transfer the Securities
proposed to be Transferred at the cash price and upon the terms and conditions
no more favorable to the purchasers of such securities than specified in the
notice to the Company pursuant to Section 2(a) above. In the event such
Stockholder has not Transferred the Securities within such ninety (90) day
period, such Stockholder shall not thereafter Transfer any of his or its
Securities without first offering such Securities in the manner provided in this
Section 2.
(e) For the avoidance of doubt, Transfers by any of the Investors
shall not be subject to this Section 2.
3. Tag Along; Drag Along Provisions.
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(a) Notwithstanding the foregoing Section 2(d), no Management
Stockholder may Transfer any of his Securities (other than in a Qualified Public
Offering (subject to the Stockholders' piggyback registration rights set forth
in Exhibit B) or as permitted pursuant to Section 8 hereof) pursuant to Section
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2(d) until the remaining Stockholders (the "Eligible Sellers") shall have been
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given the opportunity, exercisable within thirty (30) days from the date of
notice to the Eligible Sellers by such Management Stockholder, to Transfer to
the proposed transferee or transferees, upon the same terms and conditions
offered to the Transferring Management Stockholder, its Co-Sale Pro Rata Share
of the Securities proposed to be Transferred. If an Eligible Seller fails to
notify the Transferring Management Stockholder within
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thirty (30) days after the notice given pursuant hereto, it shall be deemed to
have waived its right under this Section 3. Any Transfer made pursuant to this
Section 3 shall be consummated within one hundred and twenty (120) days of the
date of the notice given pursuant to Section 2(a) above and shall be conditioned
upon the agreement of the proposed transferee or transferees that such proposed
transferee or transferees will purchase each Eligible Sellers' Co-Sale Pro Rata
Share of the Securities proposed to be Transferred.
(b) If the Requisite Holders approve a Sale of the Company (an
"Approved Sale"), each Stockholder shall vote for, consent to and raise no
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objections against such Approved Sale. If the Approved Sale is structured as a
(i) merger or consolidation, each Stockholder shall waive any dissenters rights,
appraisal rights or similar rights in connection with such merger or
consolidation or (ii) sale of stock, each Stockholder shall agree to sell all of
his Securities and rights to acquire shares of Common Stock on the same terms
and conditions applicable to the Requisite Holders. Each Stockholder shall take
all necessary or desirable actions in connection with the consummation of the
Approved Sale and the distribution of the aggregate consideration from such
Approved Sale as requested by the Company.
4. Registration Rights. Each of the Stockholders shall have the
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registration rights specified in Exhibit B, which Exhibit is a part of this
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Agreement for all purposes hereunder.
5. Voting Agreements. The parties hereto agree as follows with respect
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to all of the voting of the Securities held by them:
(a) Voting of Capital Stock. Prior to a Qualified Public Offering,
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each Stockholder (other than a Management Stockholder or an Investor) agrees to
vote all shares of Series B Preferred owned or controlled by them as designated
by the holders of 75% of the issued and outstanding shares of Series A Preferred
and Series C Preferred, voting together as a single class.
(b) Board of Directors. Each Stockholder hereby covenants and agrees
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that, except as required by the Certificate, he or it shall take no action to
change the number of members on the Board of Directors from eight (8).
(c) Common Stockholder Nominees. For so long as the Investors and the
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Investors' Permitted Transferees own any shares of Series A Preferred, Series C
Preferred or Common Stock of the Company, the Company agrees to nominate to, and
the Stockholders and their Permitted Transferees agree to cause to be elected
to, the Company's Board of Directors, the nominees designated by the holders of
a majority of the issued and outstanding shares of Common Stock pursuant to that
certain Agreement among the Company and the Investors of even date herewith (the
"Director Agreement").
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6. Preemptive Rights.
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(a) Grant of Right. The Company hereby grants to the Investors the
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right of first refusal to purchase their Pro Rata Share of New Securities which
the Company may, from time to time, propose to issue and sell.
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(b) Notice. In the event the Company proposes to undertake an
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issuance or sale of New Securities it shall give the Investors written notice of
its intention, describing the amount and type of New Securities and the cash
price and terms upon which the Company proposes to issue the same. Each Investor
shall have thirty (30) days from the date of receipt of any such notice to agree
to purchase up to its respective Pro Rata Share of such New Securities for the
cash price and upon the terms specified in the notice by giving written notice
to the Company and stating therein the quantity of New Securities to be
purchased. Subject to the previous sentence, the closing of the purchase of the
New Securities to be issued and sold to an Investor shall occur at the same time
as the closing of the sale of New Securities not elected or eligible to be
purchased by the Investors shall occur.
(c) Eligible Sales to Third Parties. After giving the notice and
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opportunity for the Investors to participate as required under Section 6(b)
above, the Company shall have ninety (90) days thereafter to issue and sell the
New Securities not elected nor eligible to be purchased by the Investors at the
cash price and upon the terms no more favorable to the purchasers of such
securities than specified in the Company's notice under Section 6(b). In the
event the Company has not sold such New Securities within said ninety (90) day
period, the Company shall not thereafter issue or sell any New Securities
without first offering such securities in the manner provided above.
(d) Waiver of Preemptive Rights. Notwithstanding anything in this
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Article 6 to the contrary, XX XX hereby waives its right of first refusal to
purchase its Pro Rata Share of New Securities that represent the next $21
million in gross proceeds to the Company from the sale of New Securities after
the date hereof. This Section 6(d) shall no longer apply when Gramercy shall
have been offered the opportunity to purchase at least $15 million in New
Securities that the Company proposes to issue and issues after the date hereof.
After Gramercy shall have been offered the opportunity to purchase at least $15
million in New Securities that the Company proposes to issue and issues after
the date hereof, regardless of whether Gramercy has elected to so purchase such
New Securities all of its rights under this Section 6(d) shall terminate.
7. Put Provisions.
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(a) Put. Prior to initiation of a transaction which the Company
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expects to result in a Qualified Public Offering (provided that the Company
shall give written notice of its intent to initiate such a transaction at least
thirty (30) days prior to such initiation), at any time and from time to time
after the earlier of either (i) November 4, 2005 or (ii) the date upon which the
holders of either (x) a majority of the outstanding shares of Series A Preferred
(which must include BACC as long as it holds any Series A Preferred) or (y) a
majority of the outstanding shares of Series C Preferred (which must include
Gramercy as long as it holds any Series C Preferred) give the Company written
notice that the Company has violated any material provision of the Series A
Purchase Agreement (in the case of the Series A Preferred stockholders) or the
Series C Purchase Agreement (in the case of the Series C Preferred
stockholders), this Agreement, the Certificate or the Director Agreement, which
violation or breach is not cured within thirty (30) days after delivery of such
written notice, the Investors and
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the Stockholders holding Series B Preferred ("Series B Preferred Stockholders")
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shall have the right thereafter to cause the Company to repurchase ("Put") their
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respective Put Securities pursuant to the terms set forth herein. The Company
agrees to give each other Investor and the Series B Preferred Stockholders
notice of any event in clause (ii) above.
(b) Put Date. In the event an Investor or Series B Preferred
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Stockholder wishes to exercise the right to Put its Put Securities, such
Investor or Series B Preferred Stockholder shall notify the Company at least
sixty (60) days prior to the effective Put Date of its intention to exercise the
Put right and the effective Put Date, which Put must cover all of such
Investor's or Series B Preferred Stockholder's Put Securities; provided,
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however, that if a "fair market value" determination made pursuant to Section
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7(c) below extends beyond the effective Put Date as specified in the notice
above, then such effective Put Date shall be ten (10) days after such "fair
market value" determination. The Company shall give all other Investors and
Series B Preferred Stockholders notice of the Put Date and the opportunity to
Put their Put Securities on such Put Date; provided that the Company shall not
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be required to give such notice more than once during any 90-day period.
(c) Put Price. The purchase price per share (the "Put Price") of the
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Put Securities shall be the greater of (i) the "fair market value" (plus all
accrued but unpaid dividends, whether declared or not declared, payable on the
Put Securities) of each of such Put Securities or (ii) the then Conversion Price
per Series A Preferred, Series B Preferred or Series C Preferred share, as
applicable (as adjusted pursuant to the Certificate) (plus all accrued but
unpaid dividends, whether declared or not declared, payable on the Put
Securities calculated in the manner set forth in the Certificate). For purposes
of this Section 7, the term "fair market value" shall mean the fair market value
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of such Put Securities on the Put Date, determined as follows:
(I) By written agreement of the Company and the Majority
Investors;
(II) If the Company and the Majority Investors fail to reach a
written agreement within thirty (30) days after the notice given by the
Investor(s) and the Series B Preferred Stockholders pursuant to Section 7(b)
above, the Company and the Majority Investors shall together appoint an
independent appraiser (which may be an investment banker) to determine the "fair
market value" of the Put Securities, which shall be binding on the parties; or
(III) If the Company and the Majority Investors are unable to
agree upon the choice of an independent appraiser under (II) hereof within forty
(40) days after the notice given by the Investor(s) pursuant to Section 7(b),
then the Company, on the one hand, and the Majority Investors, on the other
hand, shall each appoint, within ten (10) days following the expiration of such
40-day period, an independent appraiser, and the two appraisers together shall
determine the "fair market value." If only one appraiser is appointed during
the 10-day period referred to above, then such appraiser shall alone determine
the "fair market value," which determination shall be binding on the Company and
all Stockholders. If both appraisers are appointed within such 10-day period,
and within thirty (30) days after the appointment of the second of the two
appraisers, they cannot agree on the "fair market value" of the Put Securities,
then each appraiser shall prepare a separate appraisal report of the fair market
value ("FMV") of
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the Company and the "fair market value" of the Put Securities within sixty (60)
days after the appointment of the second of the two appraisers, and if the lower
of the two FMVs of the Company is equal to at least 85% of the higher FMV of the
Company, then the "fair market value" of the Put Securities shall be the average
of the "fair market value" of the Put Securities as determined by the two
appraisers. If only one of the appraisers submits an appraisal report on or
before such 60th day, then the "fair market value" of the Put Securities shall
be the "fair market value" of the Put Securities as determined by such report;
or
(IV) If neither of the appraisers submits an appraisal report on or
before such 60th day, or if both appraisers submit an appraisal report but the
averaging requirements set forth in (III) above are not met, then the two
appraisers shall promptly appoint a third appraiser who shall determine the
"fair market value" of the Put Securities. If the two appraisers fail to
appoint a third appraiser as required hereunder, either party shall have the
right to submit the determination to arbitration under the rules and procedures
of the American Arbitration Association.
(V) The appraisers and arbitrators shall have access to all books and
records of the Company and shall have the right to examine all of its accounts,
books and assets of the Company and do all things fully and completely to enable
them to arrive at the FMV of the Company and the "fair market value" of the Put
Securities. The cost of any appraisal proceedings shall be paid one-half ( 1/2)
by the Company and one-half ( 1/2) by the Investor(s) and the Series B Preferred
Stockholders exercising the Put.
(VI) An appraiser making an appraisal pursuant to this Agreement shall
assume: (x) no discounts for minority interests; (y) that the restrictions on
Transfer specified in this Agreement, any applicable securityholder agreement
and/or any applicable federal or state securities law restrictions on Transfer
are not applicable to such Put Securities; and (z) that no restricted stock
discount or publicly traded stock premium is applicable to such Put Securities.
All appraisers appointed shall be experienced and knowledgeable in the industry
or industries in which the Company does business.
(VII) The "fair market value" determination pursuant to clause (c)
hereof, shall be binding on the Company and all Stockholders for purposes of
this Section 7.
(d) Continuing Obligation. If the Company is unable to purchase all
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Put Securities required to be purchased on a Put Date due to state law
restrictions, Put Securities shall be repurchased (on a pro rata basis from the
holders of the Put Securities based upon the relative "fair market values" of
the aggregate number of Put Securities to be purchased) from time to time, to
the extent the Company is legally permitted to do so, and the Put obligations of
the Company under this Section 7 will be a continuing obligation until the
Company's repurchase of all such Put Securities. Dividends shall continue to
accrue on any Put Securities that have not been repurchased by the Company.
(e) Procedures at Closing(s). On each Put Date (including any
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subsequent purchase closing date if multiple purchases result from the
application of Section 7(d)) the Put closing shall occur at the Company's
principal office. At the Put closing, to the extent applicable,
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each Investor and Series B Preferred Stockholder exercising the Put shall
deliver the Put Securities being sold, duly endorsed in blank, accompanied by
such supporting documents as may be necessary to pass to the Company good title
to the Put Securities, free and clear of all liens or other encumbrances (other
than restrictions under applicable securities laws, this Agreement and/or any
securityholder agreement). In consideration therefor, the Company shall deliver
to such Investor and Series B Preferred Stockholder, at the Company's option,
(i) immediately available funds equal to the aggregate Put Price, based upon the
number of Put Securities being sold by each Investor and Series B Preferred
Stockholder or (ii) a full recourse promissory note or notes evidencing the
aggregate Put Price (the "Put Notes") for the Put Securities being sold by each
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Investor and Series B Preferred Stockholder, provided that the Company must
elect the same payment method for each participating Investor and Series B
Preferred Stockholder. Each Put Note shall be secured by a pledge from the
Company of the Put Securities for which the Put Note is executed, and the
Company hereby agrees to take all actions and execute all documents (in form
reasonably satisfactory to the Investors) necessary or appropriate to properly
and fully secure each Put Note with the Put Securities Transferred in exchange
therefor. In addition, each Put Note shall be in form reasonably satisfactory to
such Investor and Series B Preferred Stockholder and shall in any case, unless
otherwise agreed to by the Company and the Majority Investors (I) have a term of
three (3) years, (II) provide for repayment of the aggregate Put Price at a rate
no less than one-third per year, with principal and interest payable in equal
quarterly installments, (III) provide that the unpaid balance of the Put Note
shall accrue interest at the rate of 8% per annum, compounded on a quarterly
basis, from the date of issuance until full payment of the aggregate Put Price
is made, and (IV) provide that all amounts due under such Put Note may be
accelerated and declared immediately payable upon a default in any payment by
the Company under such Put Note, which is not cured within ninety (90) days,
upon the first such default, and sixty (60) days upon any subsequent default.
(f) Right to Withdraw Put. At any time prior to the effective Put
---------------------
Date specified in the notice given pursuant to Section 7(b) any such Investor or
Series B Preferred Stockholder may withdraw the Put, without impairing its right
to exercise its rights pursuant to this Section 7 at a later date. Any costs for
appraisals shall be paid by the parties as contemplated by Section 7(c)(V).
8. Permitted Transferees. Each Stockholder may Transfer any Securities
---------------------
free of the provisions of Sections 2 and 3 of this Agreement to a Permitted
Transferee provided that such Permitted Transferee has entered into an
Assumption Agreement, in the form attached hereto as Exhibit A, whereby such
---------
person has agreed to be bound by this Agreement in the same manner applicable to
such Permitted Transferee's transferor.
9. Changes in Stock. If, from time to time during the term of this
----------------
Agreement:
(a) There is a dividend of any security, stock split or other change
in the character or amount of any of the outstanding securities of the Company,
or
(b) There is any consolidation, merger, recapitalization or other
business combination immediately following which stockholders of the Company
hold more than 50% of the voting equity securities of the surviving corporation,
10
then, in such event, any and all new, substituted or additional securities or
other property to which any Stockholder is entitled by reason of his ownership
of the Securities shall be immediately subject to the provisions of this
Agreement and be included in the word "Securities" for all purposes of this
Agreement with the same force and effect as the Securities presently subject to
this Agreement and with respect to which such securities or property were
distributed.
10. Legends. All certificates of the Stockholders representing any
-------
Securities subject to the provisions of this Agreement shall have endorsed
thereon a legend to substantially the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO AN AMENDED AND RESTATED STOCKHOLDERS'
AGREEMENT, DATED AS OF OCTOBER __, 1999,
RESTRICTING THE TRANSFER, PLEDGE AND ENCUMBRANCE
OF SHARES. ANY TRANSFER OR ACQUISITION IN
VIOLATION OF THAT AGREEMENT IS NULL AND VOID. THE
COMPANY WILL FURNISH ANY OF ITS STOCKHOLDERS A
COPY OF THE AGREEMENT UPON REQUEST AND WITHOUT
CHARGE."
11. Transfer of Stock. The Company shall not: (a) permit any Transfer on
-----------------
its books of any Securities which shall have been sold or Transferred in
violation of any of the provisions set forth in this Agreement or (b) treat as
an owner of such Securities or accord the right to vote as an owner or to pay
dividends to any transferee to whom such Securities shall have been sold,
Transferred, pledged or hypothecated in violation of any of the provisions set
forth in this Agreement.
12. Termination. Sections 2, 3, 5, 6 and 7 of this Agreement shall
-----------
terminate upon the earliest to occur of:
(a) An agreement in writing by the Company, Management Stockholders
holding greater than fifty percent (50%) of the Securities then held by such
Management Stockholders (counted on an as-converted basis and which Management
Stockholders must include D. Xxxxxxx Xxxxx), Other Stockholders holding greater
than fifty percent (50%) of the Securities then held by the Other Stockholders
(counted on an as-converted basis), and the Majority Investors;
(b) The consummation of a Qualified Public Offering; or
(c) The consolidation, merger, recapitalization or other business
combination (but only with respect to a consolidation, merger, recapitalization
or other business combination pursuant to which stockholders of the Company
(determined prior to such transaction) hold less than 50% of the voting equity
of the surviving corporation) or sale of all or substantially all of the assets
of the Company, in each case approved pursuant to Article 8 of the Certificate.
11
13. Transfer of Rights. The rights set forth in this Agreement (other
------------------
than the rights set forth in Section 7) (the "Rights") are assignable or
------
transferable by each Stockholder to any party in connection with the sale of
such Securities to such party pursuant to the terms of this Agreement, so long
as the sale of such Securities otherwise complies with the terms of this
Agreement and the Transferee has entered into an Assumption Agreement, in the
form attached hereto as Exhibit A, whereby such person agrees to be bound by the
---------
terms of this Agreement to the same extent as such Transferee's Transferor.
14. Amendments; Waivers.
-------------------
(a) Any provision of this Agreement may be amended only with the
written consent of the Company, Management Stockholders holding greater than
fifty percent (50%) of the Securities then held by such Management Stockholders
(counted on an as-converted basis and which Management Stockholders must include
D. Xxxxxxx Xxxxx), Other Stockholders holding greater than fifty percent (50%)
of the Securities then held by the Other Stockholders (counted on an as-
converted basis), and the Majority Investors. Any amendment effected in
accordance with this Section 14 shall be binding upon each Stockholder, each
Permitted Transferee and the Company.
(b) Any provision of this Agreement may be waived (either generally or
in a particular instance) only with the written consent of the party against
whom such waiver is sought to be enforced. No failure or delay by any party in
exercising any right, power or privilege hereunder will operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided will be cumulative and not exclusive of
any rights or remedies provided by law.
15. Governing Law. This Agreement and the legal relations between the
-------------
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware.
16. Entire Agreement. This Agreement, the Series A Purchase Agreement,
----------------
the Series C Purchase Agreement, including all exhibits, schedules and
attachments thereto, the Certificate and all other agreements executed in
connection therewith, constitute the full and entire understanding and agreement
between the parties regarding the matters set forth herein and therein. Except
as otherwise expressly provided herein, the provisions hereof shall inure to the
benefit of, and be binding upon the successors, assigns, heirs, executors and
administrators of the parties hereto.
17. Notices, Etc. Except as otherwise specifically provided herein, all
------------
notices and other communications required or permitted hereunder shall be in
writing and shall be deemed effectively given (i) upon personal delivery to the
party to be notified, (ii) upon confirmation of receipt or delivery, if made by
fax, or (iii) one business day after being deposited with a reputable next-day
courier, postage prepaid, in each case if addressed (a) if to any Investors, at
the applicable Investor's address as set forth on the signature page hereto, or
at such other address as such Investor shall have furnished to the Company in
writing in accordance with this Section 17; (b) if to any other holder of the
Series A Preferred, the Series B Preferred, the Series C Preferred
12
and the Common Stock issued upon conversion thereof to whom the Rights have been
Transferred in accordance with Section 17 hereof, at such address as such holder
shall have furnished the Company in writing in accordance with this Section 17,
or, until any such holder so furnishes an address to the Company, then to and at
the address of the last holder thereof who has so furnished an address to the
Company; (c) if to a Management Stockholder, at such address as such Management
Stockholder shall have last furnished the Company and the Stockholders in
writing; (d) if to any Other Stockholder, at such address as such Other
Stockholder shall have last furnished the Company and the Stockholders in
writing; or (e) if to the Company, at its principal office.
18. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
19. Specific Performance. The Company and the Stockholders agree that the
--------------------
rights created by this Agreement are unique, and that the loss of any such right
is not susceptible to monetary quantification. Consequently, the parties agree
that an action for specific performance (including for temporary and/or
permanent injunctive relief) of the obligations created by this Agreement is a
proper remedy for the breach of the provisions of this Agreement, without the
necessity of proving actual damages. If the parties hereto are forced to
institute legal proceedings to enforce their rights in accordance with the
provisions of this Agreement, the prevailing party shall be entitled to recover
its reasonable expenses, including attorneys' fees, in connection with any such
action.
20. Severability. If any provision of this Agreement or the application
------------
of any such provision is invalid, illegal or unenforceable in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or invalidate or render unenforceable such provision
in any other jurisdiction. To the extent permitted by applicable law, the
parties waive any provision of law that renders any provision of this Agreement
invalid, illegal or unenforceable in any respect. The parties shall, to the
extent lawful and practicable, use their reasonable good faith efforts to enter
into arrangements to reinstate the intended benefits, net of the intended
burdens, of any such provision held invalid, illegal or unenforceable. In the
event that any provision of this Agreement shall be finally determined by a
court of competent jurisdiction to be unenforceable such court shall have
jurisdiction to reform this Agreement so that it is enforceable to the maximum
extent permitted by applicable law and the parties shall abide by such court's
determination. If such provision cannot be reformed, such provision shall be
deemed to be severed from this Agreement, but every other provision of this
Agreement shall remain in full force and effect.
21. Corporate Opportunities.
-----------------------
(a) The Stockholders and the Company recognize that the Investors,
their Affiliates and the directors elected or appointed to the Board of
Directors of the Company by the Investors (i) have participated, directly or
indirectly, and will continue to participate in venture capital and other direct
investments in corporations, partnerships, joint ventures, limited liability
companies and other entities and other similar transactions, (ii) may have
interests in, participate with, aid and maintain seats on the board of directors
of other such entities and (iii) may develop
13
opportunities for such entities. Specifically, such directors may be directors
or employees of a management company for the Investors, directors or employees
of the Investors or their Affiliates, or directors or advisors of entities in
which the Investors or their Affiliates have invested or may invest
(collectively, the "Positions"). In such Positions, such directors elected or
---------
appointed by the Investors may encounter business opportunities that the Company
or its Stockholders may desire to pursue. The Stockholders and the Company
recognize that such opportunities may include, but shall not be limited to,
identifying, pursuing and investing in entities, engaging investment banking
firms or other underwriters for access to public and private securities markets,
and obtaining investment funds from institutional and private investors or
others.
(b) Therefore, the Stockholders and the Company agree that the
Investors and the directors elected or appointed by the Investors shall have no
obligation to the Company, the Stockholders or to any other person or entity to
present any such business opportunity to the Company before presenting and
allowing time to develop such opportunity to any other entities other than such
opportunities presented to him or her solely in, and as a direct result of, his
or her capacity as a director of the Company; provided, that the preceding shall
--------
in no way allow a natural person or director to usurp a corporate opportunity
solely for his or her personal benefit without first presenting and allowing
time to develop such opportunity to the entities set forth above.
Notwithstanding the preceding sentence, if an opportunity is separately
presented to and developed by any such other entity, including the Investors,
such entity shall be free to pursue such opportunity even if it came to the
director's attention solely as a result of and in his or her capacity as a
director of the Company.
(c) The Stockholders and the Company acknowledge that, in any such
case, to the extent a court might hold that the conduct of such activity is a
breach of a duty to the Company, the Stockholders and the Company hereby waive
any and all claims and causes of action that the Stockholders or the Company may
have for such activities. The Stockholders and the Company further agree that
the waivers and agreements in this Agreement identify certain types and
categories of activities which do not violate the director's duty of loyalty to
the Company, and such types and categories are not manifestly unreasonable. The
waivers and agreements in this Agreement apply equally to activities conducted
in the future and that have been conducted in the past.
22. Jurisdiction; Consent to Service of Process. (a) Each party hereby
-------------------------------------------
irrevocably and unconditionally agrees to submit, for itself and its property,
to the jurisdiction of the New York state court located in the Borough of
Manhattan, City of New York or the United States District for the Southern
District of New York (as applicable, a "New York Court"), and any appellate
--------------
court from any such court, in any suit, action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment
resulting from any such suit, action or proceeding, and each party hereby
irrevocably and unconditionally agrees that all claims in respect of any such
suit, action or proceeding may be heard and determined in the New York Court.
(b) No party may move to (i) transfer any such suit, action or proceeding
from the New York Court to another jurisdiction, (ii) consolidate any such suit,
action or proceeding brought in
14
the New York Court with a suit, action or proceeding in another jurisdiction, or
(iii) dismiss any such suit, action or proceeding brought in the New York Court
for the purpose of bringing the same in another jurisdiction.
(c) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in the New York Court,
(ii) the defense of an inconvenient forum to the maintenance of such suit,
action or proceeding in any such court, and (iii) the right to object, with
respect to such suit, action or proceeding, that such court does not have
jurisdiction over such party.
(d) Each party irrevocably consents to service of process in any manner
permitted by law.
23. Waiver by Series A Stockholders. By their execution hereof, the
-------------------------------
Series A Stockholders hereby waive the provision of Section 4.1 of Stock
Purchase Agreement, dated November 4, 1998 relating to the delivery of
consolidated financial statements for the fiscal year ended December 31, 1998.
The Company acknowledges and agree to deliver such audited consolidated
financial statements no later than October 31, 1999.
24. Consents. The Company hereby confirms that its has obtained all of
--------
the consents necessary to amend and restate the Stockholders' Agreement, dated
November 4, 1998, by and among the Company, the Management Stockholders, the
Investors and the Other Stockholders (each as defined in such Stockholders'
Agreement), in accordance with the terms of such Stockholders' Agreement,
including, without limitation, its terms regarding amendments.
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Z-TEL TECHNOLOGIES, INC.
By:
----------------------------------------
Name:
Title:
INVESTORS:
GRAMERCY Z-TEL LLC
By:
----------------------------------------
Name:
Title:
Notice Address:
----------------------------
--------------------------------------------
--------------------------------------------
Attention:
---------------------------------
Fax No.:
---------------------------------
BA CAPITAL COMPANY, L.P.
By: BA SBIC Management, LLC
Its General Partner
By: BA Equity Management, L.P.,
Its Sole Member
By: BA Equity Management GP, LLC
Its General Partner
By:
----------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Member
Notice Address:
----------------------------
--------------------------------------------
--------------------------------------------
Attention:
---------------------------------
Fax No.:
---------------------------------
16
SEWANEE PARTNERS II, L.P.
By:
----------------------------------------
Name:
Title:
Notice Address:
----------------------------
--------------------------------------------
--------------------------------------------
Attention:
---------------------------------
Fax No.:
---------------------------------
MANAGEMENT STOCKHOLDERS:
--------------------------------------------
D. Xxxxxxx Xxxxx
--------------------------------------------
Xxxxx X. Kitchen
--------------------------------------------
Xxxxxxx X. XxXxxxxxx
--------------------------------------------
J. Xxxxx Xxxxxxx
SERIES B PREFERRED STOCKHOLDERS:
--------------------------------------------
Abdoney Enterprises, Ltd.
--------------------------------------------
Xxxxxxxx, Xxxxxxx, Xx.
--------------------------------------------
Xxxxx, Xxxx X.
17
--------------------------------------------
Xxxxxx, Xxxxx X., Xx.
--------------------------------------------
Xxxxxx, Xxxxx X.
--------------------------------------------
Xxxxx, Xxxxxxxxx
--------------------------------------------
Xxxxxxx, Xxxxx X.
--------------------------------------------
Xxxxxxxxx, Xxxx X.
--------------------------------------------
Xxxxxxx, Xxxxx X., Xx.
--------------------------------------------
Xxxxxxxx, Xxxx X., Xx.
--------------------------------------------
Xxxxxxx, Xxxxxxxx X., Xx.
--------------------------------------------
Xxxxxxx, XxXxx
--------------------------------------------
Xxxxxx, Xxxxxxx
--------------------------------------------
Xxxxxx, Xxxxxxx X., Xx.
--------------------------------------------
Elcan, Xxxxxxxx Xxxxx
18
--------------------------------------------
Xxxxxx, Xxxxxx X. and Xxxxxxxxx X.
--------------------------------------------
Xxxxxx, Xxxx
--------------------------------------------
Xxxx, Xxxxx, Xx. et al
--------------------------------------------
Xxxx, Xxxxx, Xx., retirement account
--------------------------------------------
Xxxxxx, Xxxx Xxx XxxXxx
--------------------------------------------
Hall, Xxxxxxx Xxxxxxxx
--------------------------------------------
Xxxx, Xxxxxxx X.
--------------------------------------------
Xxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxxx, Xxxx
--------------------------------------------
Xxxxxx, X. X. and Xxxxx X.
--------------------------------------------
Xxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxx, Xxxx and Xxxxxxxxx Xxxxxxx
19
--------------------------------------------
Xxxxxxxxx, Xxxxxxxx X.
--------------------------------------------
Larizaden, Mahmoud
--------------------------------------------
XxxXxx, Xxxxxx X.
--------------------------------------------
XxxXxx, X. X. (Buddy), Jr.
--------------------------------------------
XxxXxx, Xxxxx X.
--------------------------------------------
XxxXxx, Xxxxx X.
--------------------------------------------
XxxXxx, Xxxxxxx X.
--------------------------------------------
XxxXxx, Xxxxxx X.
--------------------------------------------
XxxXxx, Xxxxxx X.
--------------------------------------------
XxxXxx, Xxx
--------------------------------------------
Xxxxxx, Xxxxxxx X. and Xxxxx
--------------------------------------------
Xxxxxx, Xxxxxxx
--------------------------------------------
X'Xxxxx, Xxxxxxx X., Xx.
20
--------------------------------------------
Xxxxxx, Xxxxx
--------------------------------------------
Xxxxxxx, Xxxxxx X.
--------------------------------------------
Xxxxxxx, Xxxxxxx
--------------------------------------------
Xxxxxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxxxxxx, Xxxxx X.
--------------------------------------------
Xxxx, Xxxxxxxxx X.
--------------------------------------------
Xxxxxxxxxx, Xxxxxx X., Xx.
--------------------------------------------
Xxxxxxx, Xxxxxx ("Xxxxx") and Xxxx
--------------------------------------------
Xxxxxx, Xxxxxxxxx
--------------------------------------------
Xxxxx, Xxxxxx
--------------------------------------------
Xxxxxx, Xxxxxxx X.
21
--------------------------------------------
Xxxxxx, Xxxx X.
--------------------------------------------
Xxxxxxxx, Xxx
--------------------------------------------
Allerton, Jr., Xxxxxxx
--------------------------------------------
Xxxxxxxx, Xxxxxxx
--------------------------------------------
Xxxxxx, Xxxx X.
--------------------------------------------
Xxxxxx, Xxxx X.
--------------------------------------------
Xxxxxx, Xxxxx X.
--------------------------------------------
Xxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxxx, Xxx
--------------------------------------------
Oakwest Corporation
--------------------------------------------
Xxxxxxxxx, Xxxxx R
--------------------------------------------
Xxxxx, Xxx
22
--------------------------------------------
Xxxxxxx, Jr., Xxxxx X.
--------------------------------------------
Xxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxx X. Xxxxx Family Trust
--------------------------------------------
Xxxxxxx, Xxx and Xxxx
--------------------------------------------
Xxxxxxx, Xxxxxxx X. and Merry Jo
--------------------------------------------
Xxxxxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Xxxxxxx, Xx., XxXxx
--------------------------------------------
Xxxxxx, Xxxxx
--------------------------------------------
Xxxxxxx, Xxx
--------------------------------------------
Xxxxxx, Xxxxxxx X.
--------------------------------------------
XxXxxxx, Xxxxxx
--------------------------------------------
Xxxxxxxx, Xxxxxxx X.
23
--------------------------------------------
Xxxxxxx, Xxxxxxx A. S.
--------------------------------------------
Enoch, Jr., Xxxx
--------------------------------------------
Xxxxxxxx, Xxxxxx X. & Xxxx X.
--------------------------------------------
Xxxxxxxxx, Xxxxx
--------------------------------------------
Xxxx, Xxxxx
--------------------------------------------
Xxxxx, Xxx
--------------------------------------------
Xxxxx, Xxxx
--------------------------------------------
Xxxxx, Xxxxxx X.
--------------------------------------------
Xxxxxx, Xxxxxx X. & Xxxxx X.
--------------------------------------------
Xxxxxx, Xxxxx X.
--------------------------------------------
Gay, Forest S. III and Xxxx Xxxxxxx, Joint
Tenants with rights of survivorship
--------------------------------------------
Xxx, Xxxx Xxxxxxxxx
24
--------------------------------------------
GEA Fund LLP
--------------------------------------------
Xxxxxxx, Xxxxx & Xxxxxxx Xxxxx
--------------------------------------------
Xxxxx, Xxxxxxxx X.
--------------------------------------------
Xxxxxx, Xxxxxxx
--------------------------------------------
Xxxx, Xxxxxxxxxxx
--------------------------------------------
Xxxxxx, Xxxxxx
--------------------------------------------
Xxxxx, Xxxxx X.
--------------------------------------------
Xxxxx, Xxxxx X.
--------------------------------------------
Xxxxxx, Jr., Xxxxxxx X.
--------------------------------------------
XxXxxx, Xxxx X.
--------------------------------------------
XxXxxxxx, Xxxxx
--------------------------------------------
Xxxxxxxxxxxx, Xxxx
25
--------------------------------------------
Xxxxx, Xxxxxx X.
--------------------------------------------
Xxxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxxxx, Xxxxxx
--------------------------------------------
Xxxx, Xxxx
--------------------------------------------
Xxxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxx, Xxxxx
--------------------------------------------
Xxxxxxx, Xxxxxxx
--------------------------------------------
Xxxxxxxx, Xxxxxxx X.
--------------------------------------------
Xxxxxxx, Xxxxxx X.
--------------------------------------------
Xxxxxxx, Xxxx
--------------------------------------------
Xxxxxxxxx, Xxxx
--------------------------------------------
Xxxx, Jr., Xxxxx X.
26
--------------------------------------------
Xxxxxx, Xxxxx Xxx
--------------------------------------------
Xxxxxx, Xxxx
--------------------------------------------
Xxxxxx, Xxxx
--------------------------------------------
Xxxxx, Xxxxxxxxx
--------------------------------------------
Xxxxxx, Xxxxxxx
--------------------------------------------
ABI Companies, Inc.
--------------------------------------------
Liberty Ventures LLC
--------------------------------------------
Xxxxx Xxxxx, Inc.
--------------------------------------------
Dominion Financial Group International LDC
--------------------------------------------
ZT Partners, Ltd.
--------------------------------------------
Fulmead Ventures Limited
--------------------------------------------
Xxxxxxx Revocable Trust
27
--------------------------------------------
Xxxxxxx Revocable Trust
--------------------------------------------
Xxxx Family Partnership
--------------------------------------------
Xxxx Prop Group LLC
--------------------------------------------
Xxxxxxxxx X. Xxxxxx Revocable Trust
--------------------------------------------
CS First Boston
--------------------------------------------
Harbour Town Investments Z-414, LLC
28
